LinkBack URL
About LinkBacks
Salem Polyclinic CMP.NO.09 /2009 IN COP.NO. 59 / 2006
DATED THIS THURSDAY THE 5TH DAY OF NOVEMBER 2009
1. A.P.Sundaramoorthy,
2. S.Sakthivel,
3. S.Murugaraj,
4. S.Bhuvaneswari,
All residing at
No.5, K.N.P.Street,
Elampillai, Salem-2. Petitioners / Complainants
-vs-
1. Salem Polyclinic
rep by Dr.K.N.Rao,
2. Dr.B.Radhakrishna, M.D.
Salem Polyclinic,
Department of Medicine &
Pain Management,
266, Omalur Road,
Salem 636 007. Respondents / Opposite parties.
Petition filed by the petitioner praying to restore the complaint which was dismissed for default on 14/6/2007 and this petition coming before us on 02.11.2009 in the presence of Mr.R.Gunasekaran, Counsel for the petitioner and Mr.R.Srinivasan, Counsel for the first respondent and Mr.C.Subramaniyan, Counsel for the 2nd respondent and after hearing of Mr.R.Gunasekaran, for petitioner and Mr.R.Srnivasan, for first respondent and Mr.C.Subramaniyan, for 2nd respondent, this forum passed the following :
ORDER
1. The gist of the Affidavit filed by Thiru.R.Gunasekaran, Advocate for the petitioners:
Thiru.R.Gunasekaran, Advocate for the petitioners on 14.6.2007 after reaching this forum, felt uneasy with head ache and giddiness and vomiting sensation and so he has handed over the case bundle in CC 59/2006 to his colleague advocate Thiru.G.Shiva shankar and requested him to receive the written version, if any, filed by the opposite parties and to note down the next hearing date. He has also told him to inform the Hon’ble forum that he has
already furnished copies of all documents as well as copy of the complaint at the time of filing the complaint itself. But, Thiru.G.Shiva shankar told him that his personal case, as well as the senior cases were also posted on that date and he assured him that he will inform him about the proceedings.. On the same day evening, Thiru. G.Shivashankar contacted Thiru.R.Gunasekaran and informed him that he could not note the hearing date because he did not hear the case in Cc 59/2006 being called.
2. As Thiru.R.Gunasekaran, Advocate for the petitioner was unwell, he could not able to come to this forum’s office for the next one week to verify the diary. Only on 21/6/2007, he came to the forum’s office and verified the diary. He was shocked to find that the case was dismissed for default on 14/6/2007, on the ground that there was no representation on the side of the complainant and on the ground that copies of documents were not furnished to the opposite parties.
3. But, the copies of all documents along with copy of complaint were furnished to enable the opposite parties to answer the claim of the complainants. There is no provisions as per law to file a memo by the opposite parties to direct the complainants to furnish the copies of documents. If the opposite parties wants copies of documents they can very well file a copy application. The opposite parties, using this as an excuse, have not filed their written version within 15 days as requited under sec.13 (2) of Consumer Protection Act, 1986. The complainants have a good case on merits. Unless this petition is allowed and the complaint is restored to file, the petitioners will be put in to irreparable loss and hardship. Hence, it is prayed to restore the complaint to the file which was dismissed for default on 14/6/2007.
4. The Gist of the supporting affidavit filed by Thiru.G.Shivasankar, Advocate.
Thiru.G.Shivasankar, Advocate has stated that on 14.6.2007 when he was present in this forum, his colleague advocate Thiru. R.Gunasekaran told him that he was feeling uneasy with head ache and giddiness and vomitrting sensation, and handed over the above case bundle and requested him to receive the written version, if any, filed by the opposite parties and also to note down the next hearing date. He has also stated that Thiru.Gunasekaran requested him to inform the forum that he had already furnished all copies of the documents along with the complaint copy at the time of filing the complaint itself. He has
further stated that on that date his personal case and his senior’s cases were also posted in the forum, but he did not hear the case in CC 59/06 being called and so he could not note the next hearing date and he has informed the same fact to Thiru.R.Gunasekaran.
5. The gist of the counter filed by the first respondent :
The averments contained in the affidavit are not admitted as true . The applications under Rule 9 of CPC is not applicable to the Consumer Protection Act and this petition is liable to be dismissed inliminie. As per the judgement of Hon’ble Supreme Court reported in 2000 (1) CTC page 735 between New India Assurance Company Ltd –vs- R.Srinivasan, the District forum has no power to set aside the exparte order. The complainant is liable to furnish copies of complaint and documents filed to the opposite parties. Only on receipt of the copies of the complaint with all documents filed by him, the opposite party can effectively repudiate the claim. But, in this case, only the copy of the complaint was served on the first opposite party. After entering appearance through his lawyer, on verification before the district forum, it was found 83 documents have been filed along with the complaint. But, copies of such documents were not furnished to this respondent and they were also not available before this forum.
6. Hence, a memo was filed before this forum on 7.2.2007 on behalf of the first respondent stating the above fact and also for a direction to the complainants to furnish copies of the documents to the first respondent. Even after filing of the memo, the complaint was adjourned from 2.3.2007 to 29.3.2007 ,16.5.2007 and 14.6.2007 directing the complainants to furnish copies to the respondent. But, the copies were not furnished by the complainants and there was no representation on 14.6.2007, nor were the complainants present. So, the complaint was dismissed for default, for non compliance of directions.
7. It is not correct to say that counsel had entrusted the case file to another advocate for representation and on that date the case was not called in open court. With a view only to harass the respondent, this application has been filed by the petitioners. There is no merit in the petition. No cause of action for filing this petition. Hence, it is prayed to dismiss the petition with costs.
8. The gist of the counter filed by the 2nd respondent is follows :
The petition is false, frivolous, vexatious and unsustainable on law and on facts. It is false to say that on 14.6.2007 petitioners’ counsel reached this forum and felt uneasy with headache and giddiness and vomiting sensation and so he handed over the case bundle to his colleague Mr.G.Sivasankar who was present and requested him to receive the written version, but the case was not called. It is also false to say that the counsel for the petitioner came to know the dismissal order only on 21.6.2007. It is false to say that there is no provision as per law to enable the opposite party to file a memo to direct the complainant to furnish the copies of documents. On 14.6.2007 on the representation of the petitioner’s counsel, the case was passed over by this forum for furnishing the copies of documents to this respondent till 4.p.m.. But the petitioners’ have not taken any steps to furnish any documents and so the case was dismissed for default on the same date. The allegation stated in supporting affidavit filed by Thiru.Sivasankar are also false. It is false to say that on 14.6.2007 he was present before this forum on behalf of the petitioner’s counsel. It is also false to say that advocate Thiru.Shivasankaran was waiting before this forum for other cases also, as mentioned in the affidavit. There was no representation at the time of calling at 4.00 p.m. on 14.6.2007. This petition is not at all maintainable in law as described hereunder:
(a) as per law, the Advocate has no right to file this affidavit.
(b) This petitioners’counsel came to know the dismissal order on 14.6.2007 but he has filed this petition only on 22.6.2007.
(c) The petitioners’ have not filed their objection in the memo filed by the first opposite party, if so bound and duty to furnishing the documents to this respondent.
(d) The Hon’ble forum has passed an order on merits, only remedy the petitioner prefer a revision.
(e) This petitioner have not obeyed the order by this Hon’ble forum.
(f) The petitioners’ counsel has not produced any document to prove his illness.
9. The petitioner’s counsel have filed this petition only to dragon on the proceedings and so it may be dismissed with costs.
10. Both side Arguments heard. Records perused.
11. The points for consideration is : Whether this petition filed by the
petitioners can be allowed or not?
12. POINT: The learned counsel for the petitioners argued that the orders of this forum dismissing the complaint is not valid in the eye of law as the case was not posted for examination of any witness or petitioners on 14.6.2007, but the case was posted only for filing of written version by the opposite parties. He has also argued that the filing of memo by the opposite parties to direct the complainants to furnish the copies of all documents to the opposite parties is also not valid and there is no provision in the Act for filing such memos. The learned counsel further argued that this petition Order 9 Rule 9 was filed within the stipulated period of 30 days and this may be allowed. He has further argued that on extreme circumstances, the counsel on record may request his colleague advocate to represent the case on behalf of him, before this forum. The learned counsel vehemently argued that though there is no provision in the Consumer Protection Act, 1986 for filing such petition, as per the order of the various Hon’ble State Commissions this petition may be entertained and suitable orders may be passed. The learned counsel for the petitioner contended that the latest circular issued by the Hon’ble State Commission, Chennai may be considered and this petition may be allowed, as prayed for. The learned counsel concluded that the decision of the apex court reported in AIR 2000 SUPREME COURT 941in the case of New India Assurance Co.Ltd –vs- R.Srinivasan” may be followed and this petition may be allowed as prayed for.
13. But the learned counsel for the respondents 1 & 2 argued that as per the Consumer protection Regulations issued by the Hon’ble National Consumer Disputes Redressal Commission, the copies of complaint along with copies of documents shall be served upon the opposite parties as per the Regulations 10 (5). He has further argued that in this case, the complainant has not filed the copies of documents along with the complaint and so the copies of the complaint alone was served on the opposite parties and the copies of documents were not served to the opposite parties and so the first opposite party was forced
to file a memo to direct the complainant to furnish the copies of documents. But, inspite of the directions given by this Forum, the complainant have not come forward to furnish the copies of documents and as there is no representation on 14.6.2007 the complaint was dismissed for default. The learned counsel for the opposite parties vehemently argued that as per Regulations 26, the provisions of Civil Procedure Code are not applicable to the Consumer forum and so this petition under Order 9 Rule 9 of Civil Procedure Code is not maintainable and this petition is liable to be dismissed.
14. The learned counsel drawn the attention of this forum to the decision of our Hon’ble Supreme Court reported in III (1999) CPJ (1) (SC) and argued that the Hon’ble Supreme Court has held that there is no provision for setting aside the exparte order or restoration of complaint which was dismissed for default and prayed this petition may be dismissed with costs.
15. It is true that there is no provision in the Consumer Protection Act, 1986 for filing this kind of petition under Order 9 Rule 9. As pointed out the counsel for the respondent as per Section 22 A of the Consumer Protection Act, only the Hon’ble National Commission is empowered to set aside the exparte order passed by the Hon’ble National Commission. But, the decision of our Apex court in Srinivasan’s case reported in 2000 CTJ 1123 (SC) (CP), the decision of our Hon’ble High Court reported in 2008 3 Law weekly P838, the order of our Hon’ble State Consumer Disputes Redressal Commission, Chennai in A.P.No.656/99 with CMP No.259/2008 and the orders of some other Hon’ble State Commissions are in favour of entertaining such petitions.
16. The Hon’ble Supreme Court of India has decided in III (1999) CPJ 1 (SC) in the case of “Jhotsana Arvind Kumar Shah & Others -vs- Bombay Hospital Trust and held that,
“ Consumer Protection Act, 1986 – Sections 17,24 – Setting Aside Ex parte Reasoned Order : No jurisdiction vested with State Commission If law does not permit respondent to move application for setting aside ex parte order, order of State Commission setting aside exparte order cannot be sustained – No provision inAct enabling State Commission to set aside ex parte order.” The Hon’ble Supreme Court further held that, “The order of the State Commission setting aside the exparte order was one without jurisdiction, we cannot sustain the same”.
17. So, from the above decision of our apex court it is clear that the Hon’ble State Commission or District Consumer forum are not empowered to entertain the petition to set aside the exparte order passed by them.
18. But,our Hon’ble Supreme Court of India in the case of “ New India Assurance Co., Ltd -vs- R.Srinivasan reported in 2000 (1) CTC 735 has held that ,
“Powers of Civil court in Code of Civil Procedure is made available to District Forum to limited extent – Provisions of Order 9 of Code of Civil Procedure is not made applicable to proceedings of District Forum or State Commission or National Commission – Court cannot extend provisions of Order 9 to Forum created and to proceedings under Consumer Protection Act – Rules do not provide that if complaint is dismissed for default by District Forum or by State Forum second complaint could not lie - No parallel provision contained in Order 9, Rule 9 is found in Consumer Protection Act – Rule of Prohibition contained in Order 9, Rule 9 (1) of Code of Civil Procedure cannot be extended to proceedings of District Forum or State Commission – Second complaint could be filed explaining why earlier complaint could not be pursued and was dismissed for default “.
19. But, in the same decision, the Hon’ble Supreme court of India has also held in para 18
“ we only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter, of judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant. “
20. So, from the para 18 of the above decision of our apex court it is clear this forum is also having power to entertain this kind of petition.
21. But, the matter has not settled there. The Hon’ble Supreme court of India while dealing with the case of “Rajeev Hitendra Pathan and others -vs-Achyut Kashinath Karekar and another” reported in 2007 CTJ 1123 (Supreme Court ) (CP) held that “ Inview of the divergence of views expressed by coordinate Benches, in the case of “Jyotsana Arvindkumar shah and others –vs- Bombay Hospital Trust “ III (1999) CPJ I (SC) and “New India Assurance Co.Ltd –vs- R.Srinivasan” 2000 CTJ 1123 SC (CP) the matter was referred to a larger Bench to consider whether the State Commission could recall an ex parte order. The verdict of our apex court is awaited.
22. In these circumstances, considering the difficulties faced by the Madras Consumer Court Bar association The Hon’ble State Consumer Disputes Redressal Commission, Chennai has issued an order in Suo motto reference case No.1/08 dated 4.12.2008 as follows :
1. The district Forum has got power to restore the complaint which was
Dismissed for default.
2. The District Forum has got power to set aside the exparte order setting
the opposite party exparte. If a final order is passed on merits, the District Forum has no power to set aside the said decision which is passed on merits.
23 Hence, it is clear from the above circular of the Hon’ble State Consumer Disputes Redressal Commission, Chennai that the District Forum has got power to restore the complaint which was dismissed for default.
24. In this juncture, it is pertinent to note the decision of our Hon’ble High Court in the case of “Mrs. Vasanthi Thiagarajan, Principal, Sishya School, Hosur Town, Krishnagiri District, Revision petitioner -vs- R.Nageswaran reported in 2008-3-L.W. 838 in which it was held that the District forum is having power to set aside such exparte order passed by it.
25. As pointed out by the learned counsel for the petitioner, Hon’ble State Consumer Disputes Redressal Commission, Maharashtra State, Mumbai in the first Appeal No.05 of 2008 dated 17/10/2008 ;
The Hon’ble State Consumer Disputes Redressal Commission, Orissa: Cuttack in the first Appeal No.633of 2006 dated 24th July, 2008 and
The Hon’ble State Consumer Disputes Redressal Commission, Hydrabad in first Appeal No.614 of 2008 , dated 8.5.2009 have decided that the district Consumer Forum is having power to entertain the petition under Order 9, Rule 9 of Civil Procedure Code for restoration of the complaint. Even our Hon’ble State Consumer Disputes Redressal Commission, Chennai in AP.No.656/99 dated 8.4.2008 held that the Appeal is restored which was dismissed for default. So, various State Commissions also viewed that petition under Order 9, Rule 9 may be entertained and suitable orders may be passed.
26. Moreover, furnishing of the copies documents to the opposite parties is the main criteria for filing a memo by the opposite party No.2 which was forwarded to the complainant. But, the complainant’s Learned counself argued that he has filed the copies of documents along with complaint. But, the office has made an endorsement that the copies of documents were not enclosed. However, the copies were received by the opposite parties 1 & 2 on 10.6.2009.
27. This complaint was dismissed for default on 14.6.2007 as the complainant was absent and as there is no representation and for non-prosecution. But, the counsel for this petitioners have stated in his affidavit that he attended this Forum on 14.6.2007, but as he felt uneasy with headache, giddiness and vomiting sensation, he left this forum after entrusting the case bundle to his Advocate colleague, Thiru.Shivasankar, by giving instructions Thiru.G.Shivasankar, Advocate has stated in his supporting Affidavit that it is true that Thiru.R.Gunasekaran, Advocate has entrusted the case bundle by giving instructions, but the case was not called in the open forum. In the counter filed by the 2nd respondent, it is stated that the counsel for the petitioners not at all present and the case was called at 4.00 p.m. and orders were passed. So, we are in a position not to believe both versions.
28. Hence, it is clear that the complaint was not dismissed on merits or by a reasoned order. The complaint was dismissed only for the non-appearance of the complainant or his counsel and for non-furnishing of copies of documents.
29. In these circumstances, we are of the opinion that an opportunity may be given to the petitioners and this petition may be allowed in the interest of justice. But, at the same time, the petitioners have to feel the pinch of the act of non- appearance before this forum and for non furnishing of documents.
In the result, this petition is ordered to be allowed on payment of cost of Rs.2,000/- by the petitioners to the respondents on or before 13/11/2009failing which this petition shall stand dismissed.
Dictated by the President to steno typist, transcribed by her and corrected and pronounced this the Thursday the 5th day of November 2009.
Submit Complaint..
